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Articles 1 - 30 of 37
Full-Text Articles in Entire DC Network
De-Cloaking Torture: Boumediene And The Military Commissions Act, Alan W. Clarke
De-Cloaking Torture: Boumediene And The Military Commissions Act, Alan W. Clarke
San Diego International Law Journal
The Military Commissions Act of 2006 (MCA) marked the high tide and endgame for hiding torture. It's unraveling did more to uncover the Bush administration's secret interrogation practices than did the political change in Washington. International and domestic backlash against the government's embrace of harsh interrogation techniques, frequently rising to the level of torture, also played a role. However, the Supreme Court's decisions ending in Boumediene v. Bush played the decisive role. Boumediene, and the Supreme Court decisions that led up to it, made inevitable that which politics had left contingent and reversible. It also provided legal and political cover.
State-Created Property And Due Process Of Law: Filling The Void Left By Engquist V. Oregon Department Of Agriculture, Michael Wells, Alice Snedeker
State-Created Property And Due Process Of Law: Filling The Void Left By Engquist V. Oregon Department Of Agriculture, Michael Wells, Alice Snedeker
Scholarly Works
Several years ago, in Village of Willowbrook v. Olech, the Supreme Court recognized a 'class-of-one' Equal Protection theory, under which individuals charging that they were singled out for arbitrary treatment by officials may sue for vindication. Last term, in Engquist v. Oregon Department of Agriculture, the Court barred recourse to this type of claim on the part of government employees. The reasoning of Engquist, which emphasizes the discretionary nature of employment decisions, threatens to eliminate a wide range of class-of-one claims outside the employment area as well. There is a pressing need for an alternative. This article proposes another basis …
The Unconstitutionality Of Mississippi's Employment Protection Act And A Framework For Assessing Similar State Immigration Employment Laws, Nicholas Neidzwski
The Unconstitutionality Of Mississippi's Employment Protection Act And A Framework For Assessing Similar State Immigration Employment Laws, Nicholas Neidzwski
Washington and Lee Journal of Civil Rights and Social Justice
No abstract provided.
Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel
Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel
Jeffrey W Stempel
In Caperton v. A.T. Massey Coal Co., Inc., the U.S. Supreme Court vacated a state supreme court decision in which a justice who had received $3 million in campaign support from a company CEO cast the deciding vote to relieve the company of a $50 million liability. The Caperton majority adopted a “probability of bias” standard for constitutional due process review of judicial disqualification decisions that differs from the ordinary “reasonable question as to impartiality” standard for recusal. Four dissenters objected to the majority’s limited supervision of state court disqualification practice, minimized the danger of biased judging presented by the …
Political Economy Of Criminal Procedure, Keith N. Hylton
Political Economy Of Criminal Procedure, Keith N. Hylton
Faculty Scholarship
This chapter presents a public choice theory of criminal procedure. The core idea is that criminal procedure is best understood as a set of rules designed to thwart attempts to use the state's law enforcement power in a predatory fashion or in order to transfer wealth generally. For the most part we focus on a set of core procedural protections that can be considered long-established norms.
Debacle: How The Supreme Court Has Mangled American Sentencing Law And How Justice Sotomayor Might Help Fix It, Frank O. Bowman
Debacle: How The Supreme Court Has Mangled American Sentencing Law And How Justice Sotomayor Might Help Fix It, Frank O. Bowman
Frank O. Bowman III
This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continues in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It failed to recognize that defining, adjudicating and punishing crimes implicates both the …
"A Change Is Gonna Come": The Implications Of The United Nations Convention On The Rights Of Persons With Disabilities For The Domestic Practice Of Constitutional Mental Disability Law, Michael L. Perlin
Northern Illinois University Law Review
As recently as fifteen years ago, disability was not broadly acknowledged as a human rights issue. Although there were prior cases decided in the United States and in Europe that, retrospectively, had been litigated from a human rights perspective, the characterization of "disability rights" (especially the rights of persons with mental disabilities) was not discussed in a global public, political, or legal debate until the early 1990s. Instead, disability was seen only as a medical problem of the individual requiring a treatment or cure. By contrast, viewing disability as a human rights issue requires us to recognize the inherent equality …
State-Created Property And Due Process Of Law: Filling The Void Left By Engquist V. Oregon Department Of Agriculture, Michael L. Wells, Alice E. Snedeker
State-Created Property And Due Process Of Law: Filling The Void Left By Engquist V. Oregon Department Of Agriculture, Michael L. Wells, Alice E. Snedeker
Michael L. Wells
Several years ago, in Village of Willowbrook v. Olech, the Supreme Court recognized a “class-of-one” Equal Protection theory, under which individuals charging that they were singled out for arbitrary treatment by officials may sue for vindication. Last term, in Engquist v. Oregon Department of Agriculture, the Court barred recourse to this type of claim on the part of government employees. The reasoning of Enguist, which emphasizes the discretionary nature of employment decisions, threatens to eliminate a wide range of class-of-one claims outside the employment area as well. There is a pressing need for an alternative. This article proposes another basis …
International Arbitrary Arbitrator In Cas: An Uphill Battle Against Sports Organizations’ Corruption, Jae Soog Lee
International Arbitrary Arbitrator In Cas: An Uphill Battle Against Sports Organizations’ Corruption, Jae Soog Lee
Jae Soog Lee
No abstract provided.
Deconstructing The Bill Of Rights In Administrative Adjudication--Enfranchising Constitutional Principles In The Process, Shiv Narayan Persaud
Deconstructing The Bill Of Rights In Administrative Adjudication--Enfranchising Constitutional Principles In The Process, Shiv Narayan Persaud
Journal Publications
With the increased tendency toward governmental oversight in modern society, Congress deemed it fit to delegate some of its lawmaking authority to the other branches of government. While this action has effectuated the promulgation of regulations and resolution of disputes through adjudicatory proceedings, the area of administrative law continues to be challenging, especially where it poses concerns regarding an individual’s basic rights. This Article will focus discussion on some fundamental issues relating to the administrative process and explore the ramifications on the individual.
Beyond Incorporation, Kurt T. Lash
Beyond Incorporation, Kurt T. Lash
Law Faculty Publications
Incorporation as a theory of constitutional interpretation is dying. Incorporationist scholars are killing it. In this paper, I argue that they are right to do so, whether they mean to or not. The current incorporation debate bears so little resemblance to the theory of incorporation as it originally emerged at the time of the New Deal that I argue it is time to abandon the metaphor of incorporation altogether and admit that what we are after has nothing to do with incorporated texts from 1787. Our search is for the public understanding of texts added to the Constitution in 1868. …
Prosecuting Torturers, Protecting "Child Molesters": Toward A Power Balance Model Of Criminal Process For International Human Rights Law, Mykola Sorochinsky
Prosecuting Torturers, Protecting "Child Molesters": Toward A Power Balance Model Of Criminal Process For International Human Rights Law, Mykola Sorochinsky
Michigan Journal of International Law
In the age of terrorism, human rights law globally suffers substantial setbacks. However, at the regional level, human rights law is now more relevant than ever. More cases are decided each year by regional human rights tribunals, particularly in Europe. More importantly, human rights law affects more areas of domestic legal systems than ever before-from trademark law to limits on corporal punishment of children. This growing complexity presents two challenges: first, the challenge of comprehension (or the increasing need to make sense of the ever-expanding case law in many substantive areas) and second, the challenge of responsibility (or the fact …
From Privacy To Liberty: Sharing After Lawrence, Thomas P. Crocker
From Privacy To Liberty: Sharing After Lawrence, Thomas P. Crocker
Studio for Law and Culture
From Privacy to Liberty addresses the failure of the Constitution to protect shared social aspects of ordinary life. Under the Supreme Court’s third-party doctrine, if I reveal information to another person, I no longer have an expectation of privacy, and thus, I no longer have Fourth Amendment protection in that information. This much-maligned doctrine has been criticized by many, and defended only once recently in the pages of the Michigan Law Review. The effect of this doctrine is to leave most aspects of ordinary life shared in the company of others constitutionally unprotected. For example, revealing one’s location to …
Irreconcilable Differences: Resolving Conflicts In Florida's Eyewitness Identification Jurisprudence, Alisa M. Smith
Irreconcilable Differences: Resolving Conflicts In Florida's Eyewitness Identification Jurisprudence, Alisa M. Smith
Florida A & M University Law Review
No abstract provided.
Help Wanted: Seeking One Good Appellate Brief That Forces The Arkansas Supreme Court To Clarify Its Criminal Discovery Jurisprudence, Brian Gallini
Help Wanted: Seeking One Good Appellate Brief That Forces The Arkansas Supreme Court To Clarify Its Criminal Discovery Jurisprudence, Brian Gallini
School of Law Faculty Publications and Presentations
This Essay first argues that Arkansas has yet to conclusively articulate when a prosecutorial suppression of evidence in response to defense counsel's discovery request violates either the federal or state due process clauses, or the state rules of criminal procedure. More importantly, however, this Essay contends that the Arkansas Supreme Court should require prosecutors to turn over all statements in response to a specific discovery request even if those statements are only arguably “material” and “favorable to the accused.” Doing so would provide to defendants more protection pursuant to the Arkansas Constitution than they now enjoy under the Federal Constitution.Part …
Reliability, Waterboarded Confessions And Reclaiming The Lessons Of ‘Brown V. Mississippi’ In The Terrorism Cases, M. Katherine B. Darmer
Reliability, Waterboarded Confessions And Reclaiming The Lessons Of ‘Brown V. Mississippi’ In The Terrorism Cases, M. Katherine B. Darmer
M. Katherine B. Darmer
This essay traces a "protection gap" for terrorism suspects to a shift away from a concern with the reliability of confessions in the Supreme Court's post-"Miranda" jurisprudence. It argues that in order to avoid results plainly inconsistent with the Court's earlier repudiation of torture almost 75 years ago in "Brown v. Mississippi," notions of due process must be interpreted more broadly, consistent with "Brown's" recognition of an absolute prohibition on torture in our adversarial system.
Plains Commerce Bank V. Long Family Land And Cattle Company, Inc.: An Introduction With Questions, Frank Pommersheim
Plains Commerce Bank V. Long Family Land And Cattle Company, Inc.: An Introduction With Questions, Frank Pommersheim
Frank Pommersheim
No abstract provided.
Due Process And Targeted Killing Of Terrorists, Richard Murphy, Afsheen John Radsan
Due Process And Targeted Killing Of Terrorists, Richard Murphy, Afsheen John Radsan
Faculty Scholarship
"Targeted killing" is extra-judicial, premeditated killing by a state of a specifically identified person not in its custody. States have used this tool, secretly or not, throughout history. In recent years, targeted killing has generated new controversy as two states in particular-Israel and the United States-have struggled against opponents embedded in civilian populations. As a matter of express policy, Israel engages in targeted killing of persons it deems members of terrorist organizations involved in attacks on Israel. The United States, less expressly, has adopted a similar policy against al Qaeda-particularly in the border areas of Afghanistan and Pakistan, where the …
Chapter 13 Plan Cannot Avoid Lien Absent Adversary Proceeding, Michael Buccino
Chapter 13 Plan Cannot Avoid Lien Absent Adversary Proceeding, Michael Buccino
Bankruptcy Research Library
(Excerpt)
In SLW Capital, LLC v. Mansaray-Ruffin (In re Mansaray-Ruffin), 530 F.3d 230, 233 (3d Cir. 2008), the Third Circuit considered whether a Chapter 13 confirmation plan has res judicata effect with respect to a creditor’s lien when no adversary proceeding regarding the lien was brought under the Federal Rules of Bankruptcy Procedure (“the Rules”). The court held that the plan had no res judicata effect on such a lien. Accordingly, the lien passed through bankruptcy unaffected and could only be invalidated through an adversary proceeding. In doing so, the court made it clear that the requirements of …
The Role Of International Criminal Tribunals In Promoting Respect For Fair Trial Rights, Wolfgang Schomburg
The Role Of International Criminal Tribunals In Promoting Respect For Fair Trial Rights, Wolfgang Schomburg
Northwestern Journal of Human Rights
This article analyzes how the two United Nations Tribunals, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), have defined the notion of a fair trial by adopting the provisions of the International Covenant on Civil and Political Rights (ICCPR). The article argues that fundamental due process has experienced a revival in the Criminal Tribunals due to gaps in the Rules being filled in response to the ICCPR. The article examines particularly Articles 9 and 14 of the ICCPR.
Procedural Due Process Implications Of Kentucky's Thoroughbred Medication Regulations, W. Chapman Hopkins
Procedural Due Process Implications Of Kentucky's Thoroughbred Medication Regulations, W. Chapman Hopkins
Kentucky Journal of Equine, Agriculture, & Natural Resources Law
No abstract provided.
How Much Does It Matter Whether Courts Work Within The "Clearly Marked" Provisions Of The Bill Of Rights Or With The "Generalities" Of The Fourteenth Amendment?, Yale Kamisar
Articles
We know that it really mattered to Justice Hugo Black. As he made clear in his famous dissenting opinion in Adamson v. California] Black was convinced that the purpose of the Fourteenth Amendment was to apply the complete protection of the Bill of Rights to the states.2 And, as he also made plain in his Adamson dissent, he was equally convinced that working with the "specific" or "explicit" guarantees of the first Eight Amendments would furnish Americans more protection than would applying the generalities of the Fourteenth Amendment.3
Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran
Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran
Articles
Over the past hundred years, a consensus has emerged recognizing a parent's ability to raise his or her child as a fundamental, sacrosanct right protected by the Constitution. Federal courts have repeatedly rejected the parens patriae summary mode of decision making that predominated juvenile courts at the turn of the twentieth century and have instead held that juvenile courts must afford basic due process to parents prior to depriving them of custodial rights to their children. This recognition has led to the strengthening of procedural protections for parents accused of child abuse or neglect in civil child protection proceedings. Yet, …
Ascertaining The Burden Of Proof For An Award For Punitive Damages In New York? Consult Your Local Appellate Division, Leon D. Lazer, John R. Higgitt
Ascertaining The Burden Of Proof For An Award For Punitive Damages In New York? Consult Your Local Appellate Division, Leon D. Lazer, John R. Higgitt
Touro Law Review
No abstract provided.
Conceptualizations Of Legalese In The Course Of Due Process, From Arrest To Plea Bargain: The Perspectives Of Disadvantaged Offenders, Shiv Narayan Persaud
Conceptualizations Of Legalese In The Course Of Due Process, From Arrest To Plea Bargain: The Perspectives Of Disadvantaged Offenders, Shiv Narayan Persaud
Journal Publications
"Equal protection" and "due process of law" are constitutional guarantees tenaciously embraced by all Americans.' While numerous studies focused on how these guarantees play out in the lives of offenders, few sought to examine these guarantees from the standpoint of offenders, particularly those from disadvantaged socio-economic backgrounds. Guaranteed under the Fourteenth Amendment of the U.S. Constitution, the Equal Protection Clause makes clear, in part, that, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due …
Federalism, Forum Shopping, And The Foreign Injury Paradox, Elizabeth T. Lear
Federalism, Forum Shopping, And The Foreign Injury Paradox, Elizabeth T. Lear
UF Law Faculty Publications
This Article explores the contours of state regulatory power in the foreign injury context. The Supreme Court has long declined to question forum choice in domestic cases, apparently concluding that any other response would be inconsistent with our federalism. But move the injury offshore and the judicial deference to state regulatory supremacy evaporates. Federal judges subject forum choice in transnational tort actions to exacting scrutiny, routinely dismissing such claims on forum non conveniens grounds with no examination of the state interests at stake. This Article first considers whether the offshore nature of a foreign injury diminishes or even extinguishes traditional …
Procedural And Judicial Limitations On Voir Dire - Constitutional Implications And Preservation Of Error In Civil Cases., R. Brent Cooper, Diana L. Faust
Procedural And Judicial Limitations On Voir Dire - Constitutional Implications And Preservation Of Error In Civil Cases., R. Brent Cooper, Diana L. Faust
St. Mary's Law Journal
The right to a trial by jury is meaningless without an effective voir dire. Recurring tort reform, rapid technological advancements, immediate access to media coverage of incidents that give rise to litigation have greatly expanded. Consequentially, courts are faced with the prospect that potential jurors’ opinions and attitudes have been tainted. In addition to these issues, trial courts display significant interest in promptly expediting the advancement of their dockets. Voir dire is an essential element of trial strategy. Voir dire allows counsel to establish rapport with potential jurors, introduce them to the issues and facts of the case, and identify …
Should Texas's Former Ban On Obscene-Device Promotion Pass Constitutional Muster Under A Murky Lawrence Comment., Laura M. Clark
Should Texas's Former Ban On Obscene-Device Promotion Pass Constitutional Muster Under A Murky Lawrence Comment., Laura M. Clark
St. Mary's Law Journal
When the Fifth Circuit freed Texans to promote and distribute sexual devices without criminal penalties, it created a split with the Eleventh Circuit’s decision to uphold Alabama’s ban. Both courts based their rulings on the U.S. Supreme Court’s decision in Lawrence v. Texas, which invalidated Texas’s statute banning homosexual sodomy. In upholding Alabama’s sex-toy statute in 2007, the Eleventh Circuit found no fundamental right to sexual privacy under Lawrence and held public morality was a sufficiently rational basis for the statute. The court distinguished Lawrence, which dealt with prohibition of private conduct, rather than public commercial activity. The Fifth Circuit …
Dean’S Message, Lawrence Raful
Who Is A Parent?, Michelle M. Botek, Dorothy R. Fait, Jillian L. Dilaura
Who Is A Parent?, Michelle M. Botek, Dorothy R. Fait, Jillian L. Dilaura
Articles by Maurer Faculty
No abstract provided.